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2011-UP-567 - Employee Solutions v. SC Second Injury Fund

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Employee Solutions, Inc. and AIG Claim Services, Appellants,

v.

South Carolina Second Injury Fund, Respondent.


Appeal From Georgetown County
Benjamin H. Culbertson, Circuit Court Judge


Unpublished Opinion No.  2011-UP-567 
Submitted December 1, 2011 – Filed December 20, 2011
Withdrawn, Substituted and Refiled January 30, 2012


AFFIRMED


Grady L. Beard and Nicolas L. Haigler, both of Columbia, for Appellants.

Lisa C. Glover, of Columbia, for Respondent.

PER CURIAM: Employee Solutions, Inc. and AIG Claims Services (collectively Employer) appeal the circuit court's order affirming the Appellate Panel of the South Carolina Workers' Compensation Commission's (Appellate Panel) denial of Employer's request for reimbursement from the South Carolina Second Injury Fund (Fund).  On appeal, Employer argues the Appellate Panel erred in finding (1) Welch's Reactive Airways Dysfunction Syndrome (RADS) was a work-related injury and (2) Welch's Gastroesophageal Reflux Disease (GERD) did not hinder his ability to seek employment. We affirm.[1]

The purpose of the Second Injury Fund is to provide a financial incentive to employers "to hire handicapped persons, or to retain employees who become partially disabled in the course and scope of their employment."   State Workers' Comp. Fund v. S.C. Second Injury Fund, 313 S.C. 536, 538, 443 S.E.2d 546, 547 (1994).  "It is designed to compensate employees fully for subsequent injuries without penalizing employers for employing them."  Id.  Section 42-9-400(a) of the South Carolina Code (2000) permits the Fund to reimburse employer for workers' compensation claims when an employee suffers from a permanent physical impairment and liability was substantially increased due to a subsequent injury or aggravation of the permanent physical impairment.  The employer must establish that when the claim is made for reimbursement "the employer had knowledge of the permanent physical impairment at the time that the employee was hired, or at the time the employee was retained in employment after the employer acquired such knowledge." § 42-9-400(c).  However, the employer may qualify for reimbursement upon proof that the employer did not have knowledge of the permanent physical impairment due to employee's concealment of the impairment or the impairment was unknown to the employee.  Id. 

We find substantial evidence exists to support the Appellate Panel's finding that RADS was a work-related injury and not a permanent physical impairment.  See S.C. Code Ann. § 1-23-380(5)(e) (Supp. 2010) (providing this court must affirm a decision of the Appellate Panel if it is supported by substantial evidence).  In fact, no evidence exists in the record indicating Welch ever suffered from other pulmonary diseases.  His medical records from 1982, 1983, 1987, 1993, and 1997 all indicated Welch's lungs were functioning normally and without any chronic illnesses.  Additionally, Dr. Eric Moore, Dr. Wayne C. Vial, Dr. Robert L. Galphin, Jr., and Dr. Roger A. Russell all believed Welch's RADS was a work-related condition caused by his long-term exposure to hazardous materials.[2] 

We also find the Appellate Panel did not err in finding that Welch's GERD did not hinder his ability to work.  Although Dr. Galphin stated he did not know what impact GERD had on RADS, he never concluded that it contributed to Welch's disability.  Furthermore, no additional evidence exists that GERD might have contributed to Welch's unemployment.  Moreover, Welch has suffered from GERD for some time, and it never limited his ability to work.  Additionally, no doctor attributed Welch's inability to work or his other medical conditions to GERD.  Instead, they determined the RADS was caused by Welch's exposure to the sulfuric acid and the brain injury was caused by the exposure to aluminum sulfate. 

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Furthermore, we find Employer's reliance on Springs Indus., Inc. v. South Carolina Second Injury Fund, 296 S.C. 359, 36-64, 372 S.E.2d 915, 917-18 (Ct. App. 1988), in arguing that Welch's RADS is a pre-existing permanent impairment is unpersuasive.  In Springs, this court permitted reimbursement from the Fund for a new employer because the employee's permanent physical impairment developed over an extensive period of time while working for another cotton mill.  Id.  However, this case is distinguishable because Welch was continuously employed by the same employer for over twenty years during which he received daily exposure to hazardous materials.